Hacker News Reader

Comment by rkagerer | Hacker News Reader

If a section is particularly objectionable, I sometimes email the company after signing up to inform them I explicitely refuse that clause of their ToS. Only once has one ever said "sorry, you can't use our service". (In another case the company actually revised their legalese!)

Can't say how binding that is, but usually the clause is egregious enough that I bet a judge would side with me if it ever came down to it, particularly given the unequal bargaining power and common law principle of consensus ad idem.

View on HN

I don't think that would be very binding at all.

If you signed a mortgage agreement with a bank and then emailed them a week later saying "actually, I didn't like that clause about paying interest — I explicitly refuse that clause", how legally binding do you think that would be?

If a specific clause is legally unenforceable, it will be unenforceable whether or not you've emailed the company about it.

I don't know the actual term, but the "rigor" of consent can play a role in the validity of a contract. A mortgage is a very high rigor contract. You don't accidentally enter into a mortgage by clicking a box.

These are the levels that I've seen:

* Implicit Invisible ("By ordering a sandwich, you've agreed to pay for it")

* Implicit Visible ("By clicking continue you agree to our terms")

* Clickwrap Opt-out ("[x] You agree to our terms")

* Clickwrap Opt-in ("[ ] Click here to agree to our terms")

* Form ("Type your name below to agree to our terms")

* Digital Signature Service ("Sign this in Docusign/HelloSign/eSign/etc")

* Physical Signature - "You must print and upload a signed copy"

* Notarized - "You must complete this in the presence of a notary".

----

Closing on a mortgage requires notarization - with multiple lower level signatures along the way.

With that being said, I can understand your argument was an example to represent the spirit of the issue. More broadly, it comes down to how significant the action is vs how well the party can prove a counterparty agreed to it.

Nice analogy, though I respectfully submit it's imperfect. I email them at the time of signup so it's clearly not a change of heart. And with a mortgage, at least there is someone on the other side of the table providing an opportunity to negotiate.

One thing I miss about paper documents is you could cross things out before signing. I suppose I'm trying to do the digital equivalent of that. I'm all ears if you can suggest a better way to shove an amended counteroffer down their throats the same way they try to shove their ToS down mine (https://law.stackexchange.com/questions/17476/can-i-cross-ou...).

The other party is presenting their service and the terms by which they are offering it. Nobody is shoving anything down your throat. The fact that you are given no opportunity to negotiate is representative of the power dynamic. I’d put money on you feeling differently about this situation were you on the other side, having potentially millions of customers and probably-just-one person that overestimates their importance thinking that you’re going to put any amount of effort into operationalising a varied TOS for them. Beginning to use their service under the assumption that your varied TOS has been accepted is really shoving something down their throat.

I have experience selling SaaS licenses to large organisations and there is certainly room for negotiation there, sometimes to the point where the base contract is provided by the customer. It doesn’t sound like you’re talking about even remotely comparable circumstances.

Except...

It's baked into every contract that you must have a neeting of the minds. Yet there is no pipeline for back and forth in most of these agreements.

The fact is, a system is both what it is, and what it isn't. Both are positive things.

Technology, and the EULA in particular, has turned the idea of a contract, which is the end product of a negotiation brokered between two parties, into a one-way dicta. Think about the selection bias here. If you don't accept service X because their ToS has clause Y, and everybody else has clause Y, so clause Y is essentially normalized.

90% of people that didn't give a shit are doing whatever, the businesses are off to the bank with it, enjoying their network effect, and decreased legal costs/simplified legal pipeline/accounting/bookkeeping process, and you're just SOL. Want to negate the clause? Sorry.

Either A) No standing. You didn't sign it therefore you aren't in a recognizable position to claim damages/relief

B) You signed it, it's a contract, you should have known what you were getting into. (If you accept the current zeitgeist on EULA in some jurisdictions)

Guess you'll just have to make your own thing if you want it so bad... Or work through legislators/regulators, where you're still likely having to rely on some stack of EULA to even coordinate that.

Reply on news.ycombinator.com